From: Neil
Foster <neil.foster@newcastle.edu.au>
Sent: Wednesday
17 June 2026 04:21
To: obligations@uwo.ca
Subject: ODG: HCA
on negligence re crowd bystander, Cullen
Dear Colleagues;
Two important decisions from the High Court of Australia on torts
today! I will note them in two separate emails to avoid confusion. The first is
the decision in Cullen v New South Wales [2026] HCA 19 (17 June 2026). https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2026/19.html
This was an action in negligence against NSW as liable for
carelessness of police officers dealing with an 'Invasion Day' (Australia Day,
as the joint reasons note at fn 1) protest rally in the Sydney CBD. Ms Cullen
was a bystander to the rally who received serious physical injuries when
knocked over by a police officer responding to a member of the crowd who had
attacked another police officer filming the event. (The context to the specific
incident was that a speaker at the rally was proposing, contrary to conditions
police had previously laid down, to burn an Australian flag, and other officers
were moving into the crowd to prevent this, including one with a fire
extinguisher.)
There were two judgments- the joint reasons of Gageler CJ, Gordon,
Steward, Gleeson, Jagot and Beech-Jones JJ, and a separate concurring judgment
from Edelman J. There are a number of helpful restatements of the general law
of negligence which I will be using when teaching my students that topic next
semester!
In brief, the court holds that the police did have a duty of care,
the scope of which extended to not causing physical injury to members of the
crowd. This was
[24] a duty on the part of the OSG officers to exercise reasonable
care in undertaking crowd control to avoid physical injury to members of the
crowd and bystanders who were foreseeably at risk of physical injury resulting
from such police operations. (Joint reasons)
The duty as noted extended to 'bystanders' but in fact the court
concluded that Ms Cullen should in any event have been regarded as part of 'the
crowd' present at the rally. The court at [27] referred with approval to the
decision of the UKSC in Robinson v Chief Constable of West Yorkshire Police [2018]
AC 736 . There is an interesting comment on police duty of care and approval of
some previous cases on the area in [26]:
a
police officer owes a duty of care when engaging in conduct that involves
reasonably foreseeable physical injury to another. Examples include the duty
owed by police to other road users when driving in the performance of police
duties; to suspects who have been
shot in the course of pursuit or arrest; and
with respect to persons in detention. (Footnotes omitted)
The duty is restricted to positive action and in this case does
not extend to failure to act. See [29]:
the appellant's complaint is not that the OSG officers failed to
protect her against the risk of being injured, but that their actions resulted
in her being injured. (See also Edelman J at [64] for the same point.)
This
formulation of the duty is a bit broader than that which had been adopted in
the NSW CA, so on that point the appeal was successful. But on the issue of
breach of duty, the High Court agreed with the CA that there had been no
breach. The police in charging into the crowd with a fire extinguisher were
responding to a genuine risk, and Ms Cullen's injury was not a result of any
carelessness by the police officers. Note however that the fact that Ms
Cullen's injury resulted from an unlawful attack by a member of the crowd on a
police officer did not of itself negate the duty- see [31]: "an
intervening action of a third party will not negate liability in negligence
"if the intervening action was in the ordinary course of things the very
kind of thing likely to happen as a result of the defendant's negligence"".
(See also Edelman J at [76].) But here there was no police negligence.
Applying the weighing up of factors concerning breach set out in s
5B of the Civil Liability Act 2002 (NSW) (and almost identical to
the factors set out by Mason J in Wyong Shire Council v Shirt), the risk
to bystanders was foreseeable and not insignificant, but the response of the
police was reasonable in the circumstances, including their duty to look out
for the safety of crowd members who might have been harmed by any fire. The
other suggested alternative actions put forward by Ms Cullen were not reasonable-
see [42].
Edelman J agrees with the joint reasons that there was a duty, but
no breach. His Honour gives an extended discussion of duty through the lens of Palsgraf
v Long Island Railroad Co (1928) 162 NE 99, another 'bystander' case of
course, but distinguishes that case on the basis that Ms Cullen was a member of
a foreseeable class (crowd members and bystanders) whereas Ms Palsgraf was said
to be not a foreseeable victim of the carelessness of the railway worker.
See comments on 'scope' of duty at [61]:
The scope of the duty of care that is imposed by law on all
persons for unintended conduct is limited by reference to whether a reasonable
person in the defendant's position would foresee a risk that the rights of the
plaintiff, or a class of persons including the plaintiff, would be infringed by
the defendant's conduct .
His
Honour is at pains, however, to distinguish a duty of care imposed by law
(which this is) from another type of duty which could be created by 'assumption
of responsibility' (see [62]-[63]). He also then makes what I found an odd
statement that in this case there might have been an 'assumed' duty:
[65] Ms Cullen could have run a case based on a duty assumed by
the OSG officers to Mr Dunn-Velasco and the crowd around him (extending to Ms
Cullen). There are very strong grounds upon which it could have been concluded
that the OSG officers had undertaken to assume responsibility for the care of
the crowd which included Mr Dunn-Velasco, at least by the time they rushed into
that crowd in an attempt to control the actions of Mr Dunn-Velasco.
This is not really developed so others may be able to explain
this. At the moment I am not persuaded. Nor is it clear that it would have made
a difference to the question of breach. In any event, this case was run on an
'imposed' duty and in the circumstances his Honour agrees there was no breach
of that duty- see [86]-[92].
I note one issue which was only mentioned in passing but may prove
influential in the future. Edelman J (though not the joint reasons) raises the
question of how 'foreseeability' is defined and says as follows:
[60] One difficult issue is how demanding the test is for
reasonable foreseeability of risk. That issue was not explored in this case. It
suffices to say, consistently with doubts expressed by McHugh J, that it is
likely to be an error to treat the test as requiring no more than a risk that
is not "far-fetched or fanciful". (Footnote to Tame). That
expansive denotation does not cohere with the need for a risk of injury
(infringement of rights to person or property) to feature in the deliberation
of a reasonable person in the defendant's position before that risk can fall
within the scope of a duty.
I would have thought it was best to leave this issue alone, after
McHugh J's efforts to raise it as a common law point were rejected in Tame.
It is then also interesting to note that Edelman J seems to hint at approval of
the CLA statutory 'reformulation' of 'not insignificant' being one that is
described at [84] as "the real content of foreseeability, that
"the risk was not insignificant"." This seems to suggest that his Honour
would favour a redefinition at common law to match the CLA. But since the CLA applied
here, it did not need to be resolved in this case.
Regards
Neil
NEIL FOSTER
Associate Professor, School of Law and Justice
College of Human and Social Futures,
The University of Newcastle
Hunter St & Auckland St, Newcastle NSW 2300
T: +61 2 49217430
E: neil.foster@newcastle.edu.au
Further details: http://www.newcastle.edu.au/profile/neil-foster
My publications: http://ssrn.com/author=504828
I acknowledge the
Traditional Custodians of the land in which the University resides and pay my
respect to Elders past and present.
I extend this acknowledgement to the Worimi and Awabakal people of the land
in which the Newcastle City campus resides and which I work.
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